Stephen Totilo

In a 59-page brief filed to the U.S. Supreme Court this week, the state of California makes its best argument about why it should be a crime to sell a child a very violent game.

The brief reiterates arguments California officials have made against violent video games during its five-year battle with the video game industry to get the law clear of any legal hurdles. Twice, courts have sided with the video game industry's policy group, the Entertainment Software Association, deeming the law a violation of the First Amendment's freedom of speech.

The legality of a state regulating the sale and rental of violent video games to minors will be…
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Here is the State of California's best argument about why it should be illegal for a minor to buy a violent video game in California, presented from their brief and quoted here slightly more briefly. (All bolded emphasis added by Kotaku.)

What The Law Is

First, they reiterate what the blocked law is:

1. California Civil Code sections 1746-1746.5 (the Act) prohibit the sale or rental of "violent video games" to minors under 18. The Act defines a "violent video game" as one that depicts "killing, maiming, dismembering, or sexually assaulting an image of a human being" in a manner that meets all of the following requirements: (1) A reasonable person, considering the game as a whole, would find that it appeals to a deviant or morbid interest of minors; (2) it is patently offensive to prevailing standards in the community as to what is suitable for minors, and; (3) it causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors. The Act does not prohibit a minor's parent or guardian from purchasing or renting such games for the minor. Pet. App. 96a.

The Act provides for a penalty of up to $1,000 per violation, which may be lowered in the discretion of the court. The penalty does not apply to any person who is employed solely in the capacity of a salesclerk or other similar position, provided he or she does not have an ownership interest in the business in which the violation occurred and is not employed as a manager in the business. Pet. App. 98a.

Why Violent Games Should Be Treated Like Porn

California states that lower courts have blocked this law by saying it violates a "strict scrutiny" standard that allows few exceptions for the Freedom of Speech. But, California argues, the standard with which violent games should instead be held is similar to that used to decide the 1968 case Ginsberg v. New York which deemed that there was a form of speech (legal, non-obscene pornographic magazines, in that case), which it was legal to bar from minors.

Violence should get that treatment too, California argues:

No rational justification exists for treating violent material so vastly different than sexual material under the First Amendment when reviewing restrictions on distribution to minors.

Effects of this law would benefit society, according to the state:

The Act properly supports parental authority over minors while serving fundamental societal interests. The Act also serves to eliminate the perceived societal approval of minors purchasing and playing offensively violent video games – a distinct harm to the development of minors recognized by social science and this Court. Allowing minors to legally purchase such games implies societal approval. The Act eliminates any possibility of such an imprimatur

The Damage A Violent Video Game Can Do

What's the threat that violent games, in particular pose?

Today, minors' unsupervised exposure to violent material. Today, minors have access to intensely graphic, realistic, offensive violence in the games covered by the Act. And social science has developed to a point where a correlation can be demonstrated between minors who play violent video games and physical and psychological harm. Respondents' own system of self-regulation of the sale of video games [the ESRB ratings system] recognizes that certain video games are inappropriate for minors given the level of violent content available during game play.

Here's a little more on what makes violent games especially eligible for this kind of legal prohibition on minors, something that doesn't exist for violent movies or TV:

... because the adolescent brain is still developing and "the character of a juvenile is not as well formed as that of an adult," Roper, 543 U.S. at 569, the California Legislature should have the flexibility to limit children's access to a narrow category of offensively violent video games that depict and even reward gruesome violence such as decapitations, torture, and mutilation.

Remember, it is not every game California wants to subject to their law, and not necessarily any games that fit neatly into a single ESRB games rating category.

Sex = Violence, Or There's A Double Standard

California rejects any lower court opinion that the Ginsberg case should only apply to sexual content.

In the context of distribution to minors, sexual material is not the only pig to enter the parlor.

If sex really is separated from violence, California sees a double standard:

It would be ironic indeed if the First Amendment were interpreted to permit states to assist parents in protecting minors from sexual material – depictions of images and acts that they may legally engage in after the age of majority – yet prohibit them from protecting minors from offensively violent material – depictions of acts that they may never legally engage in.

Postal 2 Is Exhibit A

California mentions few video games in its brief but does cite in great detail the violence of the 2003 PC game Postal 2 (pictured above). Building to that, the state describes the relative worthlessness of the games it wants to make illegal for minors to buy:

As with obscenity, fighting words, and other forms of unprotected speech, the violent video games covered by the Act, by definition, add nothing to the free exchange of ideas for minors, do not represent a step to the truth, and any benefit to be derived from them by minors is clearly outweighed by the societal interest in order and morality.

This, for the guidance of the court, is the kind of game California wants it to be clear the state is talking about. Here is how it describes Postal 2 in a manner, the state notes, that provides more detail than the M-rating offered by the ESRB:

The ESRB gave this game a rating of M (Mature) and provides the following description: "Blood and Gore, Intense Violence, Mature Humor, Strong Language, Use of Drugs."7 But the industry's attempt at self-regulation does not begin to describe the game's violent content. As demonstrated in Petitioner's Video Game Violence video compilation (lodged with the Court by Petitioners), the violence in Postal II includes torturing images of young girls, setting them on fire, and bashing their brains out with a shovel, for no reason other than to accumulate more points in the game. In one scene in Postal II, the player (who sees through the eyes of the shooter) looks through a scope on an assault rifle and sees a very realistic image of a person's face. The player then shoots the victim in the kneecap. As the player watches the victim attempt to crawl away, moaning in pain, the player pours gasoline on the victim and lights him on fire. As the burning victim continues to crawl, the player urinates on the victim, and says "That's the ticket." After noting that it "smells like chicken," the player again looks at the victim through the scope on the gun, and again sees a realistic human face, on fire, crawling toward him. The player then shoots the victim in the face, which turns into charred remnants of a human image. In another scene, the player hits a woman in the face with a shovel, causing blood to gush from her face. As she cries out and kneels down, the player hits her twice more with the shovel, this time decapitating her. The player then proceeds to hit the headless corpse several more times, each time propelling the headless corpse through the air while it continues to bleed.

What California Doesn't Need To Prove About Violent Video Games

Games are becoming more realistic, the state says, and it cites studies that claim children are affected by the violence in some of the games they play. One example:

... in a 2004 study involving over 600 eighth and ninth grade students, researchers asked students to rank how violent a video game was on a 7-point scale, and were then asked how many hours they played that game per week. The students were then asked how often they had gotten into an argument with a teacher on a 4-point scale, ranging from "almost daily" to "less than monthly" and were asked if they had gotten into a physical fight in the last year. Students' trait hostility (the relatively permanent internal characteristic of anger and aggression) was also measured. Those students who played violent video games more often were more likely to argue with their teachers and more likely to have been involved in a physical fight. Significantly, those students with low trait hostility who played more violent video games were more likely to argue with teachers or engage in fights than students with higher trait hostility who did not play violent video games, suggesting a causal connection between playing violent video games and aggressive behavior.

But the bigger point from California here is that it doesn't believe the First Amendment requires proof of causation, that, in this case, a minor playing violent games causes a specific response in that minor.

Never has this Court required a legislative body to come forward with proof of a direct causal nexus between offensive material and physical or psychological harm to minors. Such an evidentiary requirement would presumably entail experimentation on minors in order to justify legislation seeking to protect them from harm. In order to show direct causation, researchers would theoretically be required to isolate a minor from all other forms of violence (be it media violence, school violence, or family violence) while exposing the minor only to violent video games in order to determine whether such exposure directly causes the negative physical and psychological impacts observed by the existing literature.

This Court should ... reaffirm that "[s]ound policymaking often requires legislators to forecast future events and to anticipate the likely impact of these events based on deductions and inferences for which complete empirical support may be unavailable." Turner Broadcasting System, Inc., 512 U.S. at 666.

California argues that the video game industry has failed to protect minors and that it has both a duty and the legal right to do so by making it illegal to sell certain types of extremely violent games to kids.

***

This was California's side of things, backed by the law's author, Assemblyman Leland Yee, the state's attorney general, Jerry Brown, and the governor, Arnold Schwarzenegger. Their argument will be tested this fall when the U.S. Supreme Court hears this California side of the argument and the response from the video game industry.